La nozione di «accident» nella convenzione di Montreal 1999 e la «contributory negligence» del passeggero

The essay focuses on the concept of «accident» used in the art. 17 of the Montreal Convention 1999 as a prerequisite for liability action against the carrier for bodily injury suffered by the passenger. The action,in order to be successful, requires that the injured party has to give proof of an «accident» on board the aircraft or in the course of any of the operations of embarking or disembarking. Some recent judgment have substantially confirmed the interpretation of the corresponding notion used by the Warsaw Convention of 1929. However, not any event that causes injury to the passenger constitutes grounds for the carrier’s liability, but only the one external to the passenger, unusual or unexpected with respect to the normal operating conditions of the transport. Therefore it constitutes «accident» not only what represents a risk typical of air navigation, such as a crash, a turbulence, a hijacking; but also those events which, although not caused by the passenger, are attributable to his conduct. With regard to this last aspect, it is believed that proof of absolute independence of the productive factor of the damage must be achieved with respect to an action or omission of the passenger himself or in any case to any situation that is attributable to the subjective or objective condition of the passenger. But from this point of view, the problem of identifying the constituent elements of the notion of «accident» becomes problematic. This is a very delicate issue, destined to inevitably affect the configuration of the criterion for attributing liability and the consequent burden of proof to be distributed between the parties to the contract. This is because, in this case, the fact of the passenger, creditor of the service, is relevant both for configuring the assumption of the liability action, the «accident» precisely (to which it must be extraneous) and to identify one of the grounds for exemption from carrier’s liability, the so-called «contributory negligence» (even interrupting the causal link between the debtor’s conduct and damage). Therefore, the real risk of overlaps is very real. Furthermore, since the proof of the «accident» coincides with the ascertainment of the cause of the damageevent (death or injury to the psycho-physical integrity of the passenger), the problem is to establish what intensity should be attributed to the proof of the existence of the conditions for the liability action and whether and to what extent it must burden on the injured party. The essay offers a key to understand which leads for avoiding the risk of overlap between the burden of proof for the creditor and the debtor of the service with specific reference to the cause of the damage. Finally, the proposed solution fully locates liability regime of the international air carrier for non-fulfillment of the passenger protection obligation within the modern context of the contractual liability.